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The Supreme Court: The Court of Last Resort

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The Supreme Court: The Court of Last Resort


Jennifer F. Long

Criminal Justice, CJ 6622

Dr. O'Connor

29 September 2003

At the apex of our federal court system stands the United States Supreme Court. It stands as the ultimate authority in constitutional interpretation and its decision can be changed only by a constitutional amendment. Two documents are responsible for its creation which is the Constitution, which explicitly creates the Supreme Court, and the Judiciary Act of September 24, 1789. The Supreme Court is the only court named in the constitution laying out the Courts basic jurisdiction, identifying the mode of selection and tenure for justices. Under Article III, Section 1 of the Constitution provides that "[t]he judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Article III establishes the Court as the chief authority of the judicial branch making it equal to the executive and legislative branches (Lieberman, 2003, p 3).

The Judiciary Act of 1789 not only set up the federal court system and used the Court's jurisdiction under the Constitution as a basis for granting it broad powers that are recognized everywhere. According to Abraham (1983), "There is no gainsaying the importance and the majesty of the most powerful of courts, not only in the United States, but the entire free world (p. 19)." The French political observer Alexis de Tocqueville noted the uniqueness of the Supreme Courts in the history of nations and jurisprudence. He stated, "The representative system of government has been adopted in several states of Europe, but I am unaware that any nation of the globe has hitherto organized judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people (qtd in Abraham, 1983, p. 27).

Issues as the number of justices, their qualifications and their duties have been settled by law and tradition rather than being specified in the Constitution (Baum, 1992, p. 13). The Courts composition was addressed in the Judiciary Act of 1789 under Section 1 stating "That the Supreme Court of the United States shall consist of a chief justice and five associate justices. . . ". The number of justices changed several times during the Courts first century. A number of changes were to the number of justices after the Judiciary Act of 1789 in part to accommodate the justices' duties in the lower federal courts, in part to serve partisan and policy goals of the president and Congress (Baum, 1992, p. 13).

The first Supreme Court in 1789 consisted of five justices. Congress added a sixth seat in 1790 and a seventh in 1807 to ease the strain on justices as the number of circuit courts increased. Congress added the eighth and ninth seats in 1837. Membership stayed at nine until 1863, when Congress added a tenth seat, only to abolish it when a justice died in 1865. In 1867, Congress reduced the seats to seven to limit the opportunity of President Jackson to appoint new members. Congress restored the number of seats to nine in 1869, and in 1891 abolished the Supreme Court justices' circuit-riding burden. The number of justices has remained fixed at nine, for over 100 years, making tie votes unlikely unless circumstances prevent a justice from participating in deliberations. There is currently one Chief Justice and eight associate justices in the Supreme Court although Congress does have the authority to change the number of justices sitting on the Supreme Court (Van Dervort, 2000, p. 69).

Qualifications to become a justice although not spelled out immediately became obvious. From the beginning, justices have all been lawyers and most have pursued legal and political careers prior to serving the Court. The attainment of a high position in government or the legal profession is also beneficial as they lend credibility for the consideration. Some justices however chose a different path that began with private practice followed by at some point by elevation to high administrative or judicial positions.

The Constitution requires that members of the Supreme Court be nominated by the president and confirmed by a majority of the Senate. The selection of a Supreme Court justice begins with the creation of a vacancy, when a member dies or steps down. When a vacancy occurs, the president makes a nomination, which must be confirmed by a majority of the voting in the Senate. If the Senate is in recess, the president may make a "recess appointment" that becomes effective immediately. The Senate still possesses the power to vote on the appointee's confirmation when it returns from recess. Although it is possible, it is difficult, according to Baum (1992), to reject someone who is already sitting on the Court (p. 31).

Selecting a justice is not as simple as described however. There are numerous individuals and groups that seek to influence the president and the Senate including the American Bar Association and the legal community in general, non-legal interest groups, current members of the Supreme Court and of course, the potential justices themselves. There is a great deal of external pressure that limits the president's options. The president, however, must recognize the importance of the Court and of its membership. Many believe that most presidents give nominations to the Supreme Court a degree of personal attention that is paralleled only by that given to Cabinet appointments (Baum, 1992, p 39).

The president usually chooses the nominees carefully to minimize the possibility that the justice will veer far from the administration's own agenda after confirmation. He seeks to appoint justices from their own political party, and those who share their political and philosophical views. Selections by the president may be based on competence and ethics, policy preferences, reward to political and personal associates and the pursuit of future political support. More importantly, the individual chosen must be a nominee with strong chances for Senate confirmation. The single most important factor shaping the Courts policies at any given time is clearly the identity of its members. Supreme Court policies are primarily a product of justices' preferences and change will come easily through the replacement of one justice with a successor who has different preferences (Baum, 1992, p. 155).

In 1925, nominees began



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